Re-launched in April 2010 after 12 months’ absence from the internet, this Legal Commentary on issues affecting Town & Country Planning offers comment on recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It is likely to be of interest mainly to fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.

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Saturday, 7 July 2012

Nuisance caused by development

Two cases decided last year have drawn attention to the issue of Nuisance (i.e. the tort of Nuisance) in the context of development or uses which are authorised under statutory powers. Such authorisations may include planning permission, waste management licences and various other environmental permits. One of these cases, Davis v. Tinsley, involved alleged noise nuisance from wind turbines. The claimant had sought an injunction against the operation of the turbines, plus substantial damages, based on the common law tort of Nuisance. This was a case which had been closely followed by all those interested in the issue of noise nuisance from wind farms, and judgment in the case had been eagerly or anxiously awaited (depending on various parties’ points of view).

In the event, the case was resolved at the beginning of December last year by an out of court settlement, the terms of which were strictly confidential. We may surmise, however, that on the basis of existing case law, there was a reasonable chance that this case would have succeeded if it had gone to trial, and it was this which no doubt prompted the defendants to settle.

The other case concerned a waste management licence under which an operator was running a landfill site. This was the case of Barr & others v. Biffa Waste Services Ltd (No.3) [2011] EWHC 1003 (TCC) in which judgment was given by Coulson J on 19 April 2011. This case did not involve a planning permission as such, but the relevant principles to be derived from earlier cases were reviewed by the court, and the judgment is useful in providing further clarification of the basic rules.

Discussing planning permission, the judge pointed out that it is settled law that the grant of planning permission does not of itself sanction or otherwise endorse an activity which is causing a nuisance to neighbouring properties. In Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 at 934, Buckley J had said that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, that case established an important exception to this rule, where the grant of planning permission had altered the character of the neighbourhood.

By contrast, in Wheeler v AJ Saunders Ltd [1996] Ch 19, the court found that, on the particular facts of that case, the permission could not be said to have altered the character of the neighbourhood, and the claim in nuisance (caused by a piggery) was therefore upheld.

We can see, therefore, that the grant of planning permission can be relevant in nuisance cases, at least to the extent that it can change the character of a neighbourhood for the purposes of evaluating the nuisance. In Gillingham, Buckley J said that "where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously". In Wheeler, the same point was also considered, but the change of use affected only a small piece of land and could not, therefore, effect a change in the character of the neighbourhood.

In the Court of Appeal in Watson v. Croft Cromo-Sport Ltd [2009] EWCA Civ 15, the Chancellor rejected the submission that what may properly be regarded as 'strategic planning decisions' affected in principle the private rights of the citizen to complain of a common law nuisance. However, he stressed that the implementation of such planning permission "may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the questions of nuisance or not". In support of that principle he referred to the judgments in Wheeler and in Hunter v Canary Wharf Ltd [1997] AC 655.

Thus a grant of planning permission will not of itself sanction the nuisance (Wheeler). However it may be relevant to issues surrounding the character of the neighbourhood (Gillingham, Watson).

From these various decisions it can reasonably be inferred that a major infrastructure project which has changed the character of a neighbourhood may more easily resist claims founded in nuisance than a development which does not have so great an impact. There is perhaps something slightly illogical about this, in the sense that major nuisances might not be actionable (if they arise from a development that has changed the character of the neighbourhood), whereas lesser nuisances could still be open to a legal claim. For what it's worth, I would very much doubt whether the erection of a wind farm could be said to have 'changed the chgaracter of the neighbourhood' for these purposes, although this may be open to argument, if the point is ever contested before the courts.

One other issue which has occasionally been raised in such cases is the possible breach of Article 8 of the European Convention on Human Rights (the right to respect for a person’s private and family life). To take just one example, in R (Downs) v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664; [2010] Env LR 7, the claimant had succeeded at first instance in a claim for breach of Article 8 in connection with crop-spraying. However, the defendant's appeal was allowed. The Court of Appeal held that, in order to constitute a breach of Article 8, there had to be "severe environmental pollution" and this test had not been met in that case. (The European case which proposed the test of 'severe environmental pollution' is Lopez Ostra v Spain (A/303-C) (1995) 20 EHRR 277.)

Reverting to the planning permission cases, the courts have been careful to guard against a situation in which, merely because planning permission had been given for the carrying out of a particular activity, the defendant was at liberty to perform that activity in any way that he chose, regardless of his neighbours. The courts have repeatedly held that the mere grant of planning permission does not give the recipient the right to undertake the permitted operation in such a way as to cause a Nuisance. But as we have seen, this is subject to the exception established by Gillingham.

In the Biffa case, Coulson J held that the defendant did not have a defence of statutory authority to the nuisance claims that were before the court. However, he concluded that the permitted use of the landfill site meant that the carrying out of permitted activities of waste disposal, performed in accordance with the detailed terms of the permit and without negligence, amounted to a reasonable user of land. In those circumstances, whilst claims in nuisance that involved allegations of negligence against Biffa would have been open to the claimants, claims in nuisance alone were not. Since the claims which proceeded to trial were in nuisance alone, they were bound to fail. These claims were accordingly dismissed.